Enck v. Gerding

63 Ohio St. (N.S.) 175

• Court: Ohio Supreme Court
• Decided: June 26, 1900
• Status: Published

Opinion

By the Court :

The bill of exceptions was presented to the trial judge for allowance and signing on the forty-sixth, day after the motion was overruled, that is, on September 12, 1898. The judgment of the circuit court was right unless the forty-fifth day, which was Sunday, must be excluded under the requirements of section 4951 of the Revised Statutes. That section requires that “unless otherwise specially provided” the time within which an act is required to he done, shall be computed by excluding the first day and including the last day; and if the last, be Sunday it shall be excluded. Section 5302 of the Revised Statutes provides that a bill of exceptions shall be presented to the trial judge five days before the expiration of the fifty days; but it does not “otherwise specially provide” as to the mode of computing the time. Section 4951, therefore, •controls in this case. The forty-fifth day being Sunday must be excluded from the count. The bill of exceptions w?as presented to the trial judge within the time provided by law".

The judgment of the circuit court is vacated and the cause remanded to the circuit court with instructions to consider the hill of exceptions.